The B.C. government has suffered another significant court setback to its controversial anti-impaired-driving program.

The B.C. Court of Appeal said Tuesday that immediate roadside prohibitions and their costly penalties can be upheld by the superintendent of motor vehicles only if supported by a sworn or solemnly affirmed statement of a police officer.

A three-judge panel reminded the administration that such statements are of fundamental importance to the legal system.

The province’s highest bench dismissed the government’s lame legal claim that the prohibitions could be supported by an unsworn or unaffirmed statement slipped in as evidence under another section of the Motor Vehicle Act.

“In advancing this argument, counsel for the superintendent (of Motor Vehicles) seemed to be unaware of the legal significance of a sworn or affirmed document, as opposed to one that is merely signed,” Justice Mary Newbury rebuked the government.

“A sworn or affirmed document can be the subject of a perjury charge if it is false, so that a person swearing or affirming must take great care with respect to the contents of the statement. The making of an oath or affirmation is an important part of judicial and quasi-judicial proceedings, and lawyers or commissioners for taking oaths are required to ensure that a person swearing or affirming a document appreciates the solemnity of his or her act.”

Supported by colleagues Risa Levine and Nicole Garson, Newbury cast a jaundiced eye over a Hansard quotation from former attorney general Shirley Bond asserting that the lack of affirmation was “an administrative error.”

Newbury pointed out that the so-called toughest drunk-driving law in Canada, which came into force Sept. 20, 2010, was earlier found constitutionally wanting in part because it failed to demand sworn or solemnly affirmed evidence.

Amendments adding the requirement for a sworn or affirmed statement have been in force since June 15, 2012.

“If the intention of the legislature had been as the superintendent now asserts, it would have been an easy matter to delete the words ‘sworn or solemnly affirmed by the peace officer,’,” Newbury said.

“But having retained the mandatory language, it would be illogical, if not absurd, for the legislation to provide that the superintendent could make his or her determination without a sworn or affirmed RTS (report).”

In this case, motorist Colin Roy Murray was served with an immediate roadside prohibition on July 2, 2012, after being stopped by police at 2:45 a.m. on the Trans-Canada Highway in West Vancouver.

He failed two tests on an approved screening device. He was prohibited from driving for 90 days, his car was impounded for 30 days and he was required to pay a penalty of $500.

Murray appealed, saying he wasn’t driving and didn’t have care or control of the vehicle; his lawyers also argued it was unjust for the superintendent to uphold a suspension without a sworn or solemnly affirmed statement from the police officer.

An adjudicator for the office of the superintendent of motor vehicles decided that even though the officer’s report in Murray’s case wasn’t sworn, it could be considered evidence under a different section of the act.

The B.C. Supreme Court said that was wrong and ordered a new hearing.

The Court of Appeal agreed with the lower court but said a re-hearing was unnecessary and dismissed the driving prohibition.

On Monday, the government also lost a case involving this law when the Supreme Court said an adjudicator had wrongly relied on a report from the superintendent instead of the manual for the roadside screening devices.

In spite of the criticism and mounting costs of this sloppily written-and-enacted law, the Liberals continue to bleat that they are stopping the carnage on our streets.

What a red herring.

That’s not the issue. Everyone wants impaired drivers off the road.

This is about inept, sloppy law-making that has caused injustices to ordinary, innocent people.

No one that I’ve heard in this discussion supports impaired driving or opposes giving police appropriate tools to combat it.

The review procedure in administrative regimes is intended to be summary and emphasize the protection of the public rather than individual rights.

Everyone understands that.

But the constitution still must be respected — and that’s what the B.C. Supreme Court said when it struck down the first badly framed version of this law over of its flawed appeal procedure for those who blew a “fail.”

Victoria responded by enacting amended legislation that included the requirement that the report to the superintendent on which the prohibitions were based was sworn or affirmed.

As the court has now told the government’s lawyers, the superintendent and the minister: enforce the law you passed.

Comments

We encourage all readers to share their views on our articles and blog posts. We are committed to maintaining a lively but civil forum for discussion, so we ask you to avoid personal attacks, and please keep your comments relevant and respectful. If you encounter a comment that is abusive, click the "X" in the upper right corner of the comment box to report spam or abuse. We are using Facebook commenting. Visit our FAQ page for more information.

Share

Ian Mulgrew: High court rebukes B.C. government for ignoring a requirement for roadside suspension

Video

Best of Postmedia

Swoop has yet to pick up a single customer, but Canada’s newest ultra-low-cost carrier is already talking about expanding into a market that is just taking off. Launched by WestJet Airlines Ltd., Calgary-based Swoop started booking customers this month for flights that begin this summer connecting five Canadian cities. It is offering discounted fares on […]

Director Ryan Coogler admits he was surprised by the initial feedback he got from the bigwigs at Marvel Studios when he began sharing his vision for its next franchise, Black Panther. After all, he was set to make a $200-million epic blockbuster; a popcorn movie that mixed dazzling special effects, heart-stopping action sequences and sprawling […]

At the 1988 Winter Olympics in Calgary, Mary Ormsby of the Toronto Star took one look at the fit, spandex-laden forms of the cross-country skiers and declared: “I have found my new sport.” Ormsby wasn’t a typical out-of-shape scribe. She had been an all-American volleyball player at Ohio State, so knew athletics from both sides. […]

Almost Done!

Postmedia wants to improve your reading experience as well as share the best deals and promotions from our advertisers with you. The information below will be used to optimize the content and make ads across the network more relevant to you. You can always change the information you share with us by editing your profile.

By clicking "Create Account", I hearby grant permission to Postmedia to use my account information to create my account.

I also accept and agree to be bound by Postmedia's Terms and Conditions with respect to my use of the Site and I have read and understand Postmedia's Privacy Statement. I consent to the collection, use, maintenance, and disclosure of my information in accordance with the Postmedia's Privacy Policy.

Postmedia wants to improve your reading experience as well as share the best deals and promotions from our advertisers with you. The information below will be used to optimize the content and make ads across the network more relevant to you. You can always change the information you share with us by editing your profile.

By clicking "Create Account", I hearby grant permission to Postmedia to use my account information to create my account.

I also accept and agree to be bound by Postmedia's Terms and Conditions with respect to my use of the Site and I have read and understand Postmedia's Privacy Statement. I consent to the collection, use, maintenance, and disclosure of my information in accordance with the Postmedia's Privacy Policy.